Moore, Smith and Hays, Circuit Judges. J. Joseph Smith, Circuit Judge (dissenting).
Joel Simon Meyers (appellant) was convicted, after a two-day jury trial in the Eastern District of New York, of willful failure to report for and submit to induction in the armed forces of the United States, 50 U.S.C. App. § 462(a). The jury returned a verdict of not guilty on a companion charge of hindering and interfering, by force, violence and otherwise the administration of the Universal Military Training and Service Act. 50 U.S.C. App. § 462(a). The Court imposed a four year sentence and this appeal followed.
Appellant was registered with Local Board No. 35 in Brooklyn, New York. On September 13, 1966, after several student deferments, appellant was reclassified I-A. He did not appeal the classification. After successfully passing the physical examination, he was ordered to report for induction on May 4, 1967 and to complete and submit a "Statement of Personal History" to the induction center at that time.
The procedure followed at the Fort Hamilton, New York induction center where appellant was to report is to assemble the inductees in a control room where a pre-induction orientation is given. This orientation essentially consists of an explanation of what is to be done during the day. When orientation is completed, a roll call is taken and the inductees are given additional papers to fill out. Medical and mental tests follow. After each inductee is finished, he reports back to the control room where he has lunch. Thereafter the oath is given and the induction ceremony takes place. In due course, the inductees are given dinner and then sent by plane or train to their respective station destinations.
When appellant, carrying an overnight bag, arrived at Fort Hamilton at approximately 7 a.m. on May 4, 1967 he was sent to a control room where other inductees were located. Around 7:30 a.m. the enlisted man who ran the preinduction orientation, Daniel M. Smith, entered the control room and discovered appellant handing out anti-Vietnam literature to the men assembled there. He requested appellant to refrain from distributing the literature while in the building. Appellant responded that he had a constitutional right to give out the leaflets and that he was still a civilian and not subject to military control.
Meanwhile the situation in the room became somewhat disorganized and tense. The military police were called and they requested appellant to sit down. Their request was ignored. They asked appellant to accompany them to the Provost Marshal's office where they could talk things over. This request was also ignored. Tension in the room began to mount and the situation became menacing when some of the men threatened appellant.
Appellant then began shouting obscenities, becoming, in the words of one of the military police, "a little violent, throwing his hands [out], kicking and shouting." The military police seated him in the back of the control room, but he jumped up again. With this, more military police arrived and, after 45 minutes of disruption, removed him physically to the Provost Marshal's office.
Within fifteen minutes, the military police escorted appellant out of the Fort Hamilton gates where he was met by two people. According to one of the military police "they seemed to know each other, they patted him on the back and the three of them just turned around and waved and walked up the street."
Appellant did not take the stand nor did he offer any evidence in his own behalf. His first contention is that there was insufficient evidence to support a conviction of willful failure to report for and submit to induction. The only evidence, he asserts, shows his determination to express his views to his fellow inductees, in defiance of military personnel, which he argues is not inconsistent with an intention subsequently to submit to induction. He contends that his consequent failure to submit to induction was due to the action of the induction center personnel which prevented him from taking part in the induction ceremony.
In order to avoid ambiguity in refusals to submit to induction, appellant argues that special army regulations set out a clearly defined procedure whereby a registrant expressing an intent to refuse induction will first be given an opportunity to submit, then taken aside and explained the penalties for refusal and then given an opportunity to reconsider because the sanctions are severe. Army Regulations 601-270, § 40. See Chernekoff v. United States, 219 F.2d 721 (9th Cir. 1955); United States v. Hoffman, 137 F.2d 416 (2d Cir. 1943).
While conceding that "a registrant can so clearly manifest his intent to refuse prior to that stage so that unwillingness to submit to induction may be legitimately inferred" (Applt's Br., p. 17), appellant contends that such intent must be clearly expressed, which he asserts was lacking here. Where an inductee's intention is doubtful, the case law and the regulations are said to require that he be given a warning about the consequences of a refusal and a "last clear chance to change his mind." Chernekoff, supra, 219 F.2d at 725.
The Government's position, however, is that the evidence was sufficient to support an inference that appellant had a culpable intent not to submit to induction. We agree.
In the "Statement of Personal History" filed on the day of his induction at the center, appellant declared that "I refuse to participate in the genocidal war being waged by the U.S. government against the Vietnamese people." In the same document, he stated "The draft is an instrument of slave-labor. To submit to the draft is to risk one's life and to offer to serve as an accomplice to war crimes as defined in the Nuremburg ...